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New Article: The City and the Private Right of Action

Professor Paul Diller at Willamette University College of Law has a forthcoming article in the Stanford Law Review on the private law exception to municipal home rule powers. The abstract and a link to the article are included below:

Cities in most states enjoy broad “home rule” authority – that is, the presumptive power to pass ordinances regulating a wide range of subjects. In many of these states, however, home rule comes with a catch: cities are prevented from passing ordinances that regulate or interfere with “private law.” This article argues that the “private law exception,” as this doctrine is known, is an anachronistic relic of early twentieth century legal thought that ought to be retired outright. This article explains how a subject-based view of the “private law exception,” which prevents cities from passing ordinances affecting subjects like contracts, property, and torts, is largely unenforced today. The more relevant and potent form of the “private law exception,” by contrast, prohibits cities from enacting ordinances that create private causes of action, thereby requiring local ordinances to be enforced by public means only. As this article will show, the potential justifications for the contemporary “private law exception” – preserving uniformity and protecting the interests of the state courts – are not sufficiently compelling to outweigh the costs to local policy experimentation that the exception imposes.

Click here for the full article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1829788